The Commissioner, Corrections Victoria v Knight & Anor [2010] VSCA 203

1 I will invite Nettle JA to deliver the first judgment.

2 This is an application for leave to appeal from the judgment of Robson J granting leave to the respondent, Julian Knight, to institute proceedings for a declaration of right. Knight is imprisoned at Port Phillip prison and is a declared vexatious litigant. Before Robson J, he sought leave to institute proceedings against Robert Hastings and Dennis Roache for mandatory injunction to compel them to allow him access to an in-cell personal computer for the purpose of prosecuting three proposed substantive civil applications and a declaration 'that his common law right of unimpeded access to the Courts encompasses meaningful access to the means of producing Court documents.'

3 The judge refused him leave to institute proceedings for injunction. His Honour held that there was no evidence that refusal of access to an in-cell personal computer interfered or would interfere with Knight's right of unimpeded access to the courts in relation to the three proposed substantive applications. But his Honour granted leave to institute proceedings for declaratory relief. As appears from the judge's reasons for judgment, his Honour followed two lines of reasoning. The first was based on a letter from Mr Money to Knight dated 2 March 2009 in which Mr Money wrote:

While civil actions may justify an in-cell computer, in your position as a declared vexatious litigant it is not appropriate.[1]

The Court may find the fact that Mr Knight has been declared a vexatious litigant does not make it less appropriate for Mr Knight to have unimpeded access to the Courts to seek leave to bring proceedings and that the relevant prison authorities have to be alert to the fact that without just cause, they are not entitled to take steps to deny or impede Mr Knight's access to the court.[2]

5 That led his Honour to conclude that 'an application for declarations relating to these and similar matters are not necessarily foredoomed to fail.'[3]

6 The second line of reasoning was premised on the judge's perception that the letter of 12 March 2009 suggested that:

Knight may be denied access to an in-cell computer in circumstances where to deny the same would have the effect of impeding his access to the courts ... [and so perhaps] be an unjustifiable denial of his right of unimpeded access to the courts.[4]

The court may grant a declaration or declarations that deal with the actual legal controversies that have arisen in Mr Knight's lengthy attempts to have access to an in-cell personal computer as referred to in the material before the Court ...[5]

The application for a declaration sought in paragraph 3(b) of the originating motion is foredoomed to fail.[6]

9 In effect there are two proposed grounds of appeal: first, that it was not open to the judge to be satisfied that Knight's proposed proceeding for declaration would not be an abuse of process; and, secondly, that his Honour erred by reversing the onus of proof.

10 Under the first ground, the applicant contends that the proposed declaration is so vague as to be devoid of discernable meaning. More precisely, it is said, assuming such a declaration were made, there would be no way of knowing whether it endorsed or censured the current state of computer facilities provided to the respondent. According to the applicant, it may even be that provision of pen and paper would suffice to accord Knight his rights under the declaration. Yet, without further litigation, there would be no way of knowing whether that was so. It follows, in the applicant's submission, that to seek such a declaration is an abuse of process and the judge was in error in granting leave to bring it.

11 Evidently, the judge was conscious of those potential problems but considered that they might be overcome by amendment. As his Honour explained:

The declaration that Mr Knight seeks is that a prisoner's common law right of unimpeded access to the Court encompasses having meaningful access to the means of producing Court documents. In my view an application for such a declaration would probably fail. On the other hand I consider that a Court may grant a declaration or declarations that deal with the actual legal controversies that have arisen in Mr Knight's lengthy attempts to have access to an in-cell personal computer as referred to in the material before the Court and in particular those matters I have discussed above.[7]

12 In the applicant's submission, that is not a satisfactory answer to the problem. As it stands, the declaration which is sought is hypothetical. It does not involve the application of law to established facts in order to resolve a judicial controversy between the parties.[8] And, even if the form of declaration were amended to confine it to particular facts, there is no evidence to support those facts. In those circumstances, the applicant says, the more limited form of declaration envisaged by the judge would still be hypothetical and therefore untenable.

13 Up to a point there is force in those submissions. A proceeding for declaration must involve the determination of a question that is more than abstract or hypothetical and the declaratory relief must be directed to a real legal controversy.[9] An applicant for declaratory relief does not have standing if the declaration is 'claimed in relation to circumstances that [have] not occurred or might never happen'.[10] The facts alleged must show that there is 'a substantial controversy between the parties having adverse legal interests of sufficient immediacy and reality to warrant'[11] the declaration sought.

14 Here it is arguable that those tests may not have been satisfied. As the judge found, there is 'no evidence that the refusal ... to permit Mr Knight to have an in-cell computer has interfered or will interfere with or impede his common law right of unimpeded access to the courts in relation to the proposed three substantive applications'. Thus, as his Honour held, the proposed application for injunction was foredoomed to fail or, more accurately, was not shown not to be foredoomed to fail. Logic dictates that an application for declaration of similar effect to the injunction would also be foredoomed to fail, or at least not be shown not to be foredoomed to fail, because there is no evidence that denial of access has interfered or will interfere with Knight's rights of unimpeded access to the Courts in relation to the three substantive applications.

15 At the same time, however, it is important to keep in mind the judge did not restrict his analysis to a declaration that denial of access to an in-cell personal computer has interfered or would interfere with or impede Knight's common law right of unimpeded access to the Courts in relation to the three substantive applications. As has been observed, his Honour's first line of reasoning was that, contrary to Mr Money's statement that Knight's position as a declared vexatious litigant made it inappropriate to grant Knight access to an in-cell personal computer for the purpose of civil proceedings, the court may find that Knight's position as a declared vexatious litigant does not make it less appropriate for him to have access to an in-cell personal computer for the purpose of civil proceedings. As the judge put it, 'A court may find that the fact that a person has been declared a vexatious litigant is entirely a matter for the Court to deal with.'[12]

16 It seems, therefore, that what his Honour had in mind was that the Court might make a declaration to the effect that Knight's status of declared vexatious litigant is not a relevant consideration in determining whether he should be allowed an in-cell personal computer for the purposes of prosecuting the three proposed substantive applications. So much appears to be implicit in his Honour's observation that 'A court may find that the fact that a person has been declared a vexatious litigant is entirely a matter for the Court to deal with.'[13] As his Honour said, it is not difficult to suppose that a declaration of that kind limited to the three proposed substantive proceedings could have foreseeable consequences in relation to those proceedings.

17 One difficulty with that approach was that Knight did not seek a declaration in the more limited terms comprehended by his Honour, and it is hardly fair to the applicant, or otherwise appropriate, to deal with the matter on the basis of what might be one day. Consequently, after the matter was called on this morning, it was stood down so that counsel for the respondent could draw an appropriate amendment seeking declaratory relief along the lines that his status as a declared vexatious litigant is not a relevant consideration in determining whether he should be allowed access to an in-cell personal computer for the purpose of prosecuting the three proposed substantive applications. When the matter came back on for hearing this afternoon, counsel for the respondent produced a draft of the proposed amended relief in the form of a claim for declarations:

1. That the status of a prisoner as a vexatious litigant is not a relevant consideration in determining whether to grant the plaintiff access to an in-cell computer; and
2. That in an application by a prisoner for access to an in-cell computer on legal grounds, it is not relevant whether the proposed or actual proceedings are civil as opposed to criminal.

18 As was pointed out by counsel for the applicant, each of those claims suffers to some extent from the difficulties which attend the more general form of relief originally sought. In the course of further argument, however, it has become apparent that, although the respondent would like to obtain declaratory relief in terms as wide as may be permitted, he is content to confine his claim to an application for declaration that his status as a vexatious litigant is not a relevant consideration in determining whether to grant him access to an in-cell computer for the purposes of prosecuting the three substantive applications.

19 In opposing the respondent's application for leave to amend his claim to one for a declaration of that kind, counsel for the applicant argued that the issue had in effect already been decided by Byrne J in matter No 9420 of 2003,[14] in which his Honour refused relief directed to obtaining access to an in-cell computer for the purposes of then proposed proceedings. Counsel for the applicant drew attention in particular to paragraph [20] of Byrne J's reasons for judgment, where his Honour said that there

is no basis for any of the various grounds asserted in paragraph 3 of the statement of claim. It is clear from the material that Mr Money considered the application on its merits and formed an adverse view on it. The reasons which are set out in his letter of 2 March [2009] are not inappropriate, nor are the further considerations set out in his affidavit.

20 Byrne J added by way of obiter that the Commissioner was entitled to conclude that Knight's claim that he required access to an in-cell personal computer for the preparation of an outstanding legal matter was without substance. For in March 2009, there were no outstanding legal matters on foot, whether criminal or civil, to which Mr Knight was a party. Byrne J considered that Knight's claim 'with respect to the sending of letters in respect of which he had already had leave to commence was not alive. Nor [could] it be said that the prospect that he might seek to set aside the vexatious litigant order, satisfied this criterion.'

21 Counsel for the applicant submitted that, since the observation of Mr Money which is now relied upon to found Knight's claim for modified declaratory relief was made in the letter of 2 March 2009, which Byrne J said did not appear to contain any matters which were inappropriate considerations for the purpose of deciding the application for access which was then the subject of consideration before Byrne J, it cannot be gainsaid that the issue which is now sought to be litigated has already been determined.

22 Arguing against those submissions, counsel for the applicant drew the court's attention to paragraph [207] of Robson J's reasons for judgment, where his Honour said that, in his opinion, the proposed application for declaratory relief was not an abuse of process, despite what Byrne J said on the earlier occasion, because, when Byrne J made those remarks, the three now proposed substantive applications were not contemplated. Counsel also directed the court's attention to paragraph [66] of Robson J's reasons for judgment, in which is set out the contents of the letter of 4 December 2009 from Mr Money to Mr Knight. In that letter, Mr Money said, among other things, that he was not satisfied that there has been any significant change to circumstances since his remarks of 12 March 2009.

23 Counsel submitted that, to the contrary, the situation with which Robson J was concerned was distinctly different to that which was the subject of consideration before Byrne J and the fact that Mr Money appears not to have considered that it was different strongly supports the need for the declaratory relief which is sought.

24 Obviously, there are arguments either way, and it is fair to say that what is now sought is ex facie very similar to what has been sought and denied in the past. Nevertheless, there are the differences to which counsel for the respondent referred, and they are such, as ultimately was fairly and frankly conceded by counsel for the applicant, that a claim for declaration of the more limited kind which I have mentioned cannot be said to be foredoomed to failure.

25 In the result, if the proceeding were to remain as it was at the time when Robson J considered the matter, I would be of the view that his Honour's decision was attended by sufficient doubt to warrant the grant of leave to appeal and I would be persuaded, in all the circumstances, including the history of litigation between the parties, that if that doubt were realised, it would be productive of sufficient injustice to warrant the grant of leave. It seems to me, however, that, in as much as the judge based his decision upon the view that the declaratory relief of the more limited kind now identified may be available, or at least that it had not been demonstrated that application for declaratory relief of that kind is foredoomed to fail, his decision was not attended by sufficient doubt to warrant the grant of leave which is sought. Consequently, if the proceeding is confined to a claim for limited declaratory relief of that kind, I would not be disposed to grant leave to appeal.

26 Assuming, therefore, that counsel for the respondent were to seek leave to amend to confine the respondent's claim to a declaration of the limited kind which I have identified, I would be disposed to allow the amendment and refuse the application for leave to appeal.

27 I agree. For the reasons which his Honour has given, and on the same basis, I would refuse leave to appeal.

28 I wish to add two or three things for myself. In my respectful view, the passages to which Nettle JA has referred show that Robson J was astute to discern what his Honour considered was a live legal issue, capable of being litigated within the declaratory proceeding sought to be initiated. It would have been open to his Honour to conclude, as the applicant here today has argued he should have, that the generality of the declaration sought, and the lack of any evidentiary basis to suggest that an issue had arisen about the impeding of the unfettered right of access to

proceedings, was such that in those terms the proceeding would inevitably fail. But, as Nettle JA has explained, his Honour identified, and we think correctly, the dispute which it was in substance sought to litigate.

29 With respect, it seems to me that that was entirely the appropriate course to take in the circumstances. The history of litigation brought by Mr Knight would have made it likely, if not inevitable, that if the result had been the refusal of leave, there would in time have been a further application for leave in respect of a more narrowly framed issue. What his Honour did seems to me to have been informed by a proper concern to minimise the use of Court time in relation to what he thought was a substantive question, to minimise the cost both to this Court and to the publicly-funded respondent, and to avoid a multiplicity of proceedings. It also seems to me to exemplify the attitude of successive judges shown to the unrepresented vexatious litigant in the Philip Morris case.[15]

30 The making of a vexatious litigant declaration is a matter of far-reaching significance for the person the subject of the declaration. It is not to be forgotten that Mr Knight has been declared such a litigant because the Court was satisfied that he habitually and persistently, and without any reasonable ground, instituted vexatious legal proceedings. But s 21 of the Supreme Court Act 1986 (Vic) makes it quite clear that a person so declared is entitled to seek leave to institute a proceeding. Of course, there is a statutory threshold which must be crossed. But the very function of the exception allowing leave to be granted, it seems to me, is that no vexatious litigant is forever barred from the Courts. The making of a declaration does not deny the person thus declared the right to say, 'I have a legitimate legal issue to prosecute.'

31 In this case, as occurred in Philip Morris, his Honour discerned a proper matter for litigation, albeit not properly formulated by Mr Knight (at that stage unrepresented). In that sense, too, this case echoes Philip Morris. It seems to me entirely appropriate that the Court should be astute with unrepresented litigants, where a point of substance is discernible, to ensure that form does not obscure substance when the question of abuse of process is considered for the purposes of sub-s 21(4).

32 It was for similar reasons that the Court explored with counsel for Mr Knight whether what his Honour plainly contemplated in granting leave could not be effectuated by an appropriate amendment. One of the express purposes for which an amendment may be allowed is to avoid a multiplicity of proceedings.[16] That again serves to explain the course we have proposed.

33 Two final comments. We are not asked to express a view on the issue now likely to be ventilated, but it seems to me with respect that there is very considerable force in what Robson J said about the possible reaction of the Court to the legal issue as now identified. It is not at all clear to me how the status of a person as a vexatious litigant could be relevant to the question of that person's access to computer facilities, when the express object of his seeking access is to enable the person to exercise his right to apply for leave to litigate. That is of course a question for the judge who will hear this proceeding.

34 Finally, since I have concerns about the pressures on this Court and the trial Court, I cannot refrain from making the following comment. It seems surprising that what on the face of it would appear to be a relatively minor issue of access to computer facilities should have required a full dress application for leave to appeal such as this. I would have thought there were more significant matters of prison administration to which such litigation effort and public resources would be directed. Of course, every person has a right to challenge decisions. But if, in the end, this is about ensuring that a prisoner, like any other citizen, can properly exercise the rights which as a vexatious litigant the Supreme Court Act 1986 (Vic) confers on him, then it may be that now is the time for some reconsideration.

1. The application for leave to appeal is refused, subject to the filing by the first respondent of an amended originating process seeking declaratory relief in or substantially in the terms of paragraph one of the draft provided to the Court this afternoon, referring to the status of the plaintiff rather than a prisoner.

[1] Knight v Hastings [2010] VSC 99, [199].

[8] Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564, 582.

[9] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257.

[10] University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1, 10; Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663, 670-1 (Lockhart J).

[11] Re Trade Practices Act (1974) [1978] FCA 10; (1978) 19 ALR 191, 208 (Brennan J, citing Maryland Casualty Co v Pacific Coal and Oil Co [1941] USSC 28; 312 US 270, 85 3rd Ed 826 (1940), and see Aronson, Dyer, Groves, Judicial Review of Administrative Action 3rd Ed, 789-793.

[12] Knight v Hastings [2010] VSC 99, [199].

[14] [2009] VSC 242.

[15] Phillip Morris Ltd v Attorney-General (Vic) [2006] VSCA 21; (2006) 14 VR 538.

[16] Supreme Court (General Civil Procedure) Rules 2005 (Vic) r 3601(1)(c).